Section 504, the Americans
with Disabilities Act (ADA)
vs.
The Individuals with Disabilities Education Act (IDEA)
What is the Difference?

by
Susan Conners, M. Ed.
Education Specialist, TSA, Inc.

TSA frequently receives questions regarding the difference
between a Section 504 Plan and an IEP (Individualized Education Program). More
and more schools are denying parental requests for the classification of
children with TS under the Individuals with Disabilities Education Act (IDEA)
under which the child would be eligible for an IEP (Individualized Education
Program.) They are opting instead to provide a Section 504 Accommodation Plan
under the Americans with Disabilities Act (ADA).

Parents are often confused about the difference between
the two options, which one is more appropriate and offers more protection for
their child. They also have concerns about which will provide their child with
the optimum learning environment based on their level of disability.

In this article, you will learn about Section 504 of
the Rehabilitation Act and the Americans with Disabilities Act (ADA), as
contrasted with the Individuals with Disabilities
Education Act (IDEA).

Section 504 and ADA

Section 504 is a federal civil rights law. The purpose of
Section 504 is to protect persons with disabilities against discrimination for
reasons related to their disabilities.

Unlike IDEA, Section 504 does not guarantee that a child
with a disability will receive an individualized educational program that is
designed to meet the child's individual educational needs.

Eligibility

Just because a child has a disability or impairment does
not mean that he/she automatically qualifies for special education services
under the IDEA. A child with a disability who does
not need special education services will not qualify for special education and
related services under the IDEA. He or she may however receive protections under
Section 504 of the Rehabilitation Act.

Eligibility for protections under Section 504 depends on
the child in question having a physical or mental impairment which must
substantially limit at least one major life activity. Major life activities
include walking, seeing, hearing, speaking, breathing, learning, reading,
writing, performing math calculations, working, caring for oneself, and
performing manual tasks. As you see, many activities are included under this
category. The question that must be addressed by the school's special education
team is whether the child has an "impairment" that "substantially
limits one or more major life activities."

Section 504 requires an evaluation that draws information
from a variety of sources. Section 504 does not require a meeting before a
change in placement.

Rights Dilemma

Some parents have the belief that if a child is classified
under IDEA, the child must automatically be placed in a special education class.
They also believe that if the child has a 504 plan, the child may remain in the
regular classroom. These same parents therefore often assume that a 504 Plan is
more desirable which is not accurate. "Special
education" under IDEA does not mean placement. It means the child has been
identified as having unique educational needs related to his/her disability and
is entitled to an Individualized Education Program (IEP) to meet these needs.

A child who receives Section 504 protections has fewer
rights than the child who receives special education services under the IDEA. The
child who receives special education services under the IDEA is automatically
protected under Section 504.

Section 504 is designed to guarantee that children with
disabilities will not be discriminated against. It is also important to
understand that if your child does not qualify for special education services
under IDEA, your child does not have the procedural protections that are
available under the IDEA.

Section 504
Accommodation Plan

Under Section 504, the child with a disability may receive
accommodations and modifications that are not available to children who are not
disabled. These accommodations and modifications are also available under IDEA.
For children with TS and associated disorders, the following accommodations
could include, but not be limited to, such things as:

Tests taken in a separate location with time limits waived
or extended.

The education of other students who come into contact with
the child with TS.

Giving the child frequent breaks out of the classroom to
release tics in a less embarrassing environment.

The use of a word processor due to fine motor, visual
motor deficits.

Tests/reports given orally.

Shortened assignments.

Standardized tests answers written directly in the test
booklet and transferred onto answer sheet by teacher or assistant.

Class notes provided rather than having the student copy
from the chalkboard or overhead.

Allowing the child to leave the classroom 2 to 3 minutes
early to avoid crowded hallways.

Preferential seating in the classroom.

Provision of a daily assignment sheet to be filled out by
the student and verified by the teacher for accuracy. The parent could then
check to make sure that all the work is accomplished. This would assist with
homework prioritizing and management.

Let's suppose that your special needs child is severely
visually impaired. Under Section 504, your child cannot be discriminated against
because of the disability. Your child must be provided with access to an
education, to and through the schoolhouse door. Modifications may need to be
made to the building itself and other accommodations may need to be made for
your child. Preferential seating, enlarged print texts, workbooks, tests, etc.
would be reasonable accommodations.

Section 504 defines a free appropriate public education as
"the provision of regular or special education and related aids and
services that . . . are designed to meet individual educational needs of persons
with disabilities as adequately as the needs of persons without disabilities are
met and . . . are based upon adherence to specified procedures."

Now let's suppose that your visually impaired child also
has Tourette Syndrome, ADHD and a Non Verbal Learning Disability that adversely
affects the child's ability to learn. Under the IDEA, if your child has a
disability that adversely affects educational performance, your child is
entitled to an education that is designed to meet the child's unique needs and
from which your child receives educational benefit. Section 504 does not
guarantee that your visually impaired child will receive an education from which
your child receives educational benefit. Your Section 504 child has access to
the same free appropriate public education that is available to children who are
not disabled.

Issues of Discipline

If your child simply has a 504 Plan and this child
misbehaves in school, the school may decide that the child's behavior is not
related to the disability and the child can be expelled from school permanently.
Under IDEA the child has the right to a fair and appropriate education, even if
expelled from school. Section 504 and ADA do not provide these protections. This
can be particularly problematic for children with TS and associated disorders.

Procedural
Protections

Section 504 does not include a clearly established
"Prior Written Notice" requirement. In contrast, IDEA includes an
elaborate system of procedural safeguards designed to protect the child and
parents. These safeguards include written notice before any change of placement
and the right to an independent educational evaluation at public expense. Section
504 does not include these protections.

The Right to Due
Process and an Impartial Hearing

Both Section 504 and IDEA require school districts to
conduct impartial hearings for parents who disagree with the school's special
education team in regards to identification, evaluation, or placement of their
child. Under Section 504, the parent has an opportunity to participate and
obtain legal counsel, but other details are left to the discretion of the school
district.

A Word to the Wise

To be eligible for special education services, it is
necessary to prove that the child in question has a disability that interferes
with his education and performance. The first
stumbling block for many parents is exactly that, proving to the school that the
child's Tourette Syndrome is having an impact on his educational performance.
The main reason for this first stumbling block is the lack of knowledge on the
part of school personnel about the nature of TS and its associated disorders.

Before a child qualifies for special education services under IDEA, it is
required that he/she be evaluated. Most of us have the erroneous idea that this
evaluation is simply a series of standardized tests administered by either the
school psychologist and/or a special education teacher. We also assume that the
results of these tests are the sole determining factor in qualifying a child for
services. This view is inaccurate. According to IDEA, an evaluation must consist
of all of the following:

Special medical concerns
addressed by the treating physician

Interviews with parents and
school staff

Information from parents

Specific tests which must
include all areas related to the suspected disability

If the child has been tested and the school has informed
you that he/she does not qualify for special education services based solely on
the results of testing, this is not acceptable. Many children with TS do
not qualify on the results of psycho educational testing alone. They may indeed
have a learning disability, but in an area that may not have been assessed.And
more importantly their disability will very likely be based on the impact of the
symptomatology of TS, ADHD, OCD and any other associated neurological disorders
on classroom performance. These are the questions
that you need to ask and evaluations that you need to request:

Has the school's Committee on
Special Education consulted with the treating physician to determine the nature
of this child's symptoms?

Has the committee interviewed
the parents as to specific symptoms and problem areas that they are seeing at
home?

Whether or not the child is
having behavior problems at school, has a Functional Behavior Assessment been
done?

These are all common areas of learning disabilities
associated with children with TS. They are often overlooked when the child is
tested. If the school tells you that they do not routinely test for these
disabilities and/or do not have access to these specific tests, then you have
the right to have your child tested outside the school system preferably by a
neuropsychologist and to have this evaluation paid for by the school. I
reiterate that the reason that the school system does not routinely test for
these disabilities is lack of information. They are probably unaware that these
are areas that must always be looked at when evaluating with children with TS.

Will they take your word for this?? Possibly, but not
typically. This is where you turn to your child's treating physician who can
actually write a "prescription" for these tests and state why. This is
where you also turn to the Tourette Syndrome Association to obtain literature
verifying the co-occurrence of associated conditions in children with TS.

Tourette Syndrome is a medical condition and therefore
qualifies under the classification of Other Health Impaired (OHI). A learning
disability does not have to be present for classification. Certainly all
suggested tests should be administered to test for a learning disability. A very
important fact to remember is that the school cannot refuse to classify a child
for special education services because he or she is not "Learning
Disabled".

Summary

In this article, you learned that Section 504 of the
Rehabilitation Act and the Americans with Disabilities Act are responsible for
accommodations and modifications in testing situations and programs, and
improved building accessibility. You learned that these statutes do not require
public schools to provide an educational program that is individualized to meet
the unique needs of a child with the goal of enabling the child to become
independent and self- sufficient. You learned that the child with a Section 504
plan does not have the protections available to the child who has an IEP under
the IDEA.

It's also very important to note that the decision is made
by the school's special education committee of which the child's parents and
their advocates are equal members whether the child will receive services under
IDEA and thus an IEP. It is also important to reiterate that children with TS
receiving services under IDEA should always be classified under the category of Other
Health Impaired (OHI).